JUDGMENT :

Heard learned Senior Advocate Mr.Percy Kavina assisted by learned advocate Mr.A.S.Panesar for the petitioners and learned advocate Mr.Lalit M. Patel for the respondent-Bank.

1. Rule, returnable forthwith. Learned advocate Mr.Patel waives service of notice of rule for the respondent-Bank.

2. Considering the issue raised in this petition in narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing today.

3. By this petition under Article 227 of the Constitution of India, the petitioners have prayed for the following reliefs :

“(A) To issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari or any other writ for quashing and setting aside the impugned order dated 16/10/2021 (Annexure- A) passed by the Debts Recovery Tribunal-2, Ahmedabad in SA No.94 of 2020 and restrain the Respondent from taking any further action under the provisions of the SARFESI Act till the final hearing of SA No.94 of 2020 pending before the DRT-2, Ahmedabad.

(B) Pending admission, hearing and final disposal of this Petition the Respondent be directed not to take any further actions against the property of the Petitioners under the provisions of the SARFESI Act and to direct the Respondent to maintain status quo qua the property in question.

(C) Be pleased to grant ex-parte ad-interim reliefs in terms of Para 7-B as stated supra.

(D)To grant any other and further appropriate and just relief(s) as may be deemed necessary & fit on the facts and circumstances of case

(E) The cost of this petition may be awarded.

(F) The Honourable Court may be further pleased to quash and set aside the impugned notice dated 21.12.2021 issued by Executive Magistrate and City Mamlatdar, Bhavnagar.

(G) Pending admission, hearing and final disposal of the present petition, the execution and implementation of impugned Notice dated 21.12.2021 issued by Executive Magistrate and City Mamlatdar, Bhavnagar my kindly be stayed.”

4.1. By this petition, the petitioners have challenged the order dated 16th October, 2021 passed by the Presiding Officer of the Debt Recovery Tribunal-II, Ahmedabad in Securitisation Application No.94 of 2020 filed by the petitioners refusing to grant interim-relief to the petitioners. The petitioners availed the financial assistance from the respondent-Bank in the year 2014 as the Overdraft facility of Rs.100 Lakhs was sanctioned vide sanctioned letter dated 12th August, 2014.

4.2. Thereafter, the respondent-Bank by sanction letter dated 5th July, 2017 converted the Overdraft facility to Term Loan Facility of Rs.88 Lakhs with an Equated Monthly Instalment (EMI) of Rs.2,09,351/- to be paid in 60 instalments by the petitioners.

4.3. The petitioners however, could not pay the EMI in time and therefore, the Term Loan Account of the petitioner was declared as Non Performing Asset (for short ‘the NPA’) in the year 2018.

4.4. The respondent Bank issued a Notice under Section 13(2) of the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’) on 14th February, 2019 wherein, the details of the advance financial assistance given by the respondent-Bank is narrated as under :

“1. We, Kotak Mahindra Bank Limited (hereinafter referred to as. “KMBL") at the request of You. No.-1, (“Borrower”) have, granted below mentioned overdraft facility aggregating to Rs. 88,00,000.00/- Lakhs under Loan Agreement No.RHB681268, which was duly signed & accepted by You No.-1. (Hereinafter You No.- 1 referred to as “Borrower” herein),

(Hereinafter referred to as “Loan”)

2. Subsequent to above, You No.1 have entered into a Master Facility Agreement with KMBL along with other documents